“Odors,” Nuisance, and the Clean Air Act
“ODORS” is the regulatory classification to which municipal and state agencies have assigned localized air-pollution concentrations since the early 1950s, when these bodies’ jurisdiction was extended beyond smoke to the broader category, “air pollution.” This chapter follows the history of this regime during the two decades prior to and subsequent to passage of the 1970 Clean Air Act (CAA), focusing on how and why localized pollution came to be defined as “odors” and on the regulatory consequences that followed from this problem definition. Most importantly, as the chapter highlights, the term “odors” imparted an aesthetic and subjective meaning to the pollution problem in question. The term rendered toxicological worry—the most pressing concern behind citizens’ appeal for air-pollution abatement—largely irrelevant to regulatory policy toward these concentrations. At the same time that this approach trivialized the meaning of the problem, it also held the potential for incremental implementation of pollution controls independent of specific scientific proof that the pollution caused disease.
Congress twice put before the EPA the option of incorporating odors within the category of pollutants regulated under the CAA. Doing so would have provided the EPA with a mechanism for achieving incremental reductions of Hazardous Air Pollutants (HAPs), which are often odorous as well. But the EPA rejected this course under the argument that differences in communities’ sensitivity to odors render the reactive suppositions of local and state-implemented nuisance law a more appropriate regulatory framework. Ironically, it was the CAA’s absolutist—if unimplemented— promise of complete protection against risk from HAPs that allowed for the entrenchment of nuisance law in this domain. This occurred through the creation of a false distinction between HAPs (ostensibly subject to complete control) and residual aesthetic annoyances from “odors.”
Coal smoke was never much of a problem in Los Angeles, where there was little industrial development prior to Word War II. The war brought rapid industrialization and severe air-quality deterioration to an area where citizens had been accustomed to clean air, and by 1946 the issue